Law Professors Take on Challenge of Helping with Prosecution of Piracy in Indian Ocean

Somali pirates emerge as a major problem for world shipping

News Release: Friday, December 16, 2011

CLEVELAND – In December, Case Western Reserve University Law Professor Michael Scharf and Cleveland State University Cleveland-Marshall College of Law Professor Milena Sterio traveled half way around the world to the Seychelles Islands. They weren't there for the sun and surf; they were there to assist in prosecuting scores of Somali pirates.

The two Cleveland law professors attended a series of meetings with Rony James Govinden, the attorney general of the Seychelles; British prosecutors on loan to the Seychelles, and Justice Duncan Gaswaga, who is chief judge of the Criminal Division of the Seychelles Supreme Court.

After about 200 years of relatively calm waters, piracy has re-emerged as a major problem for world shipping, resulting in more than $12 billion in losses in the past twelve months alone. Somali pirates, who operate throughout the Indian Ocean, have recently seized more than 50 vessels and taken over 1,000 crewmembers and passengers hostage.

Somalia won’t prosecute the pirates; and Kenya’s prosecutions have been put on hold by its High Court. So the United States, United Kingdom and others that have been capturing Somalia pirates and have been taking them to the Seychelles Islands, which has set up a regional piracy court and special prison with the assistance of the United Nations.

Professors Scharf and Sterio are members of the “High Level Piracy Working Group,” an elite team of piracy and international criminal law experts assembled by the Public International Law and Policy Group, the Nobel-nominated NGO that Scharf co-founded and directs.

Also in the High Level Piracy Working Group is Judge Rosemelle Mutoka, the Chief Judge of the Kenya Piracy Court, who has spent the fall semester as a Distinguished Visiting Jurist at Case Western Reserve’s Law School. The Group also includes representatives from the U.S. Department of State, U.S. Department of Justice, and U.S. Department of Defense, as well as a dozen leading academics and practitioners from several countries.

Scharf serves as the High Level Piracy Group's chair. The two Cleveland law professors were joined in the Seychelles by Sandy Hodgkinson, who has served as Assistant Secretary of Defense for Detainee Affairs and Deputy Ambassador at Large for War Crimes Issues.

During the past six months, Scharf, Sterio and the other members of the High Level Piracy Working Group have been busy preparing two dozen research memoranda for the Seychelles prosecutors.

Issues reviewed include the definition of piracy, exercise of universal jurisdiction over pirates apprehended by third states, trial of child-pirates, standards of use of force against pirates whether by nations or private contractors, modes of responsibility applicable to piracy, prosecuting the financing of piracy, international standards of justice applicable to piracy trials, factors guiding the sentencing of convicted pirates, and repatriation and reintegration of pirates after completing jail time.

At their universities, professors Scharf and Sterio teach special seminars during which students research and draft memos for the High Level Piracy Working Group.

While briefing the attorney general and chief justice in the Seychelles, Scharf and Sterio delivered the research memos and a virtual library of piracy-related legal resources on flashdrives.

"If these sources had been in hard copy, they would have filled the attorney general's entire office from floor to ceiling," Scharf said.

Professor Sterio says that the Seychelles authorities were "absolutely delighted with the assistance," which they characterized as "crucial to the future success of the piracy prosecutions." She adds that during their meetings, Attorney General Govinden and his staff provided additional issues for the Working Group to work on for pending cases over the coming months.

Sterio in a blog post about the Seychelles experience wrote: “It is our hope that the legal memoranda will prove useful in the short future, as several Somali pirates already have been prosecuted, and additional pirates are awaiting trial in the Seychelles’ domestic courts.”

While piracy prosecutions are very serious business, Scharf says that the pirate prosecutions are also becoming somewhat of a tourist attraction for the Seychelles, noting that he and Sterio dined at the Pirate Arms restaurant around the corner from the Seychelles Supreme Court, where the pirates are being tried, and that "Pirates of the Seychelles" t-shirts are sold at all the local gift shops.

As part of this project, PILPG is publishing the “Piracy News Update,” a biweekly electronic newsletter that will keep subscribers informed of piracy-related developments around the world. A link is http://publicinternationallawandpolicygroup.org/piracy/.

In addition, the High Level Piracy Working Group has assembled a comprehensive electronic database of piracy-related documents and resources, available at: http://publicinternationallawandpolicygroup.org/documents-on-countering-piracy-and-related-crimes-off-the-coast-of-somalia/.

Michael P. Scharf is John Deaver Drinko–Baker and Hostetler Professor of Law at Case Western Reserve University School of Law. He is director of the Frederick K. Cox International Law Center there.